6.  The applicant was born in 1947 and lives in Bucharest. At the relevant time, he was a judge inspector at the Bucharest Court of Appeal.
7.  On 11 September 2000 the Romanian Intelligence Service (“the RIS”) informed the Anti-Corruption Department of the Prosecutor’s Office attached to the Supreme Court of Justice (“the prosecutor”) that the lawyer L.P. (the applicant in case no. 25333/03) had given bribes to several judges, including the applicant, in order to obtain decisions favourable to her clients. It based the accusation on information obtained through intercepting L.P.’s telephone, measure taken because one of her clients was suspected of crimes against national security. The surveillance activity was carried out under the National Security Act (Law no. 51/1991). The RIS handed the audio tapes and their transcripts over to the prosecutor’s office. The prosecutor then continued the surveillance of the applicant’s activities, including through telephone tapping. Several conversations between L.P. and the applicant, concerning cases of L.P.’s clients, were recorded between 7 and 14 June 2000.
8.  On 22 March 2001 the prosecutor obtained the Ministry of Justice’s approval to start criminal investigations in respect of the judges involved that is the applicant and R.F. On 4 May 2001 he started criminal proceedings against the applicant (începerea urmăririi penale).
9.  On 7 May 2001 the prosecutor invited the applicant to his office, informed him of the accusations against him and arrested him.
10.  Under Law no. 92/1992 on the organisation of justice, the applicant was suspended from his post from 7 May 2001.
11.  On 21 May 2001 the applicant was released pending trial.
12.  Throughout the proceedings, the applicant denied having committed the crimes.
13.  On 12 December 2001 the prosecutor indicted the applicant for trading in influence (trafic de influenţă), for aiding and abetting to give bribes (complicitate la darea de mită) and for favouring the commission of crimes, and committed him and several other persons to trial. In particular, the prosecutor accused him of accepting money from L.P. on several occasions in order to convince the judges who were deciding on the cases concerning L.P.’s clients to release them pending trial and of acting upon his promises by trying to persuade some of those judges to release L.P.’s clients.
14.  The case was heard by the Criminal Division of the Supreme Court of Justice.
15.  On 31 January the Supreme Court heard testimony from each defendant separately and the relevant parts of the audio tapes were played in their presence. None of them denied having had the recorded conversations.
16.  The applicant again denied having committed any crime. He explained that his discussions with L.P., which had been recorded through secret surveillance, as well as those he had had with his fellow judges about the cases referred to by L.P., had concerned only questions of law. He maintained that he had not accepted any money or promise of money from L.P. He reiterated that in his capacity as judge inspector, he was entitled to discuss questions of law with his colleagues.
17.  L.P. and R.F. also denied committing any crime.
18.  At the same hearing on 31 January 2002, the co-defendants alleged that there were procedural defects. They argued that as the prosecutor had failed to request the necessary authorisation for intercepting magistrates’ conversations, the audio recordings were illegal.
The court gave detailed answers to their complaints. Concerning the telephone tapping, it noted that one of L.P.’s clients had been indicted for weapons and ammunition smuggling, which, under the National Security Act, constituted a threat to national security and thus allowed the RIS, under procedure regulated by the Code of Criminal Procedure, to seek authorisation from the prosecutor to intercept the suspect’s conversations. The fact that during the surveillance activity the authorities came across telephone discussions among the co‑defendants which led them to believe that L.P. was trying to corrupt the defendant judges constituted preliminary investigation (acte premergătoare).
The Supreme Court reiterated that so long as the recordings had been obtained during the preliminary investigation phase, they did not constitute evidence. Only if the judicial authorities considered their content relevant for the criminal proceedings could those recordings be admitted to the file.
19.  On 21 February 2002 the declarations given by the defendants were read out in court. They were allowed to supplement their testimony and put questions to their co‑defendants.
20.  R.F.’s counsel opposed hearing testimony from an informer arguing that “the prosecutor is using [him] although he is an offender” (“infractor”), to which the prosecutor, I.K., replied “an offender who is giving statements about other offenders”. Both the applicant and R.F. asked for the prosecutor to withdraw from the case for having breached the presumption of their innocence.
21.  At the same hearing of 21 February 2002 the Supreme Court heard testimony from the witnesses for the prosecution.
22.  On 27 February and 25 March 2002 the Supreme Court dismissed the objections raised by the applicant and R.F. concerning the prosecutor’s withdrawal. I.K. continued to represent the prosecutor’s office throughout the first-instance and appeal proceedings.
23.  On 14 March 2002, at the defendants’ request, the Supreme Court ordered an expert examination of the audio tapes, in accordance with Article 915 of the Code of Criminal Procedure (“CCP”).
24.  At a hearing on 4 April 2002 the Supreme Court dismissed a request by the applicant and R.F. for the RIS to be asked to adduce the reports drafted by the officers in charge of the surveillance and the reports attesting to the transfer of the audio tapes between the RIS and the prosecutor’s office. The Supreme Court considered that that evidence was irrelevant in so far as none of the parties involved had contested having had the recorded conversations.
25.  On 4 April, 25 April, 9 May and 6 June 2002 the Supreme Court heard eight witnesses for the defence.
26.  On 3 June 2002 the two experts rendered their report, as requested by the Supreme Court. They concluded that the audio tapes were neither authentic nor original and they advised against admitting them as evidence in the criminal trial.
27.  On 6 November 2002 the Supreme Court of Justice, sitting as a three-judge bench, rendered its decision. By a majority of two, it changed the legal classification from continuous crimes of trading in influence and aiding and abetting L.P. to give bribes, to two individual crimes of trading in influence and two individual crimes of aiding and abetting. It convicted the applicant and sentenced him to five years’ imprisonment. The dissenting judge disagreed with the legal classification given to the facts.
28.  The Supreme Court considered that the statements made by the defendants and the witnesses both before the prosecutor and in open court confirmed that some of L.P.’s clients had been released from prison because she had bribed the judges, including the co-defendants. The court also noted that some of the witnesses for the prosecution who had retracted their initial statements had admitted, either before the prosecutor or in court that they had been pressured by the defendants into changing their declarations. The court also considered that the testimonies given by the witnesses corroborated the transcripts of the telephone conversations.
29.  The Supreme Court also made a lengthy analysis of the transcripts thus responding to the defendants’ allegations that they had been obtained unlawfully and that they could not be used as evidence as they had been collected during the preliminary investigation stage. The court reiterated that none of the participants had denied having had the conversations recorded on the tapes produced by the prosecutor and listened to in open court. It noted that the experts had not questioned that aspect either.
As for the authenticity and originality of the tapes, which the experts contested, the court pointed out that, in the sense of Article 224 of the Code of Criminal Procedure, the report concerning the transcripts, drafted by the prosecutor after the opening of the criminal proceedings, represented the evidence and not the tapes themselves (which were attached to the prosecutor’s report, as the law required); nor did the original hard‑disk onto which the recording had been done. In his report, the prosecutor attested to the authenticity of the recordings and proved that the procedure in place for the telephone tapping had been respected. The court confirmed those aspects. The defendants had had ample opportunity to challenge it, as provided for by the CCP.
Moreover, the court observed that the original recording had been digital, done straight onto the hard-disk of the equipment used by the RIS for telephone tapping; the tapes attached to the prosecutor’s report were consequently copies of the original recordings. Because of its nature and purpose, the hard-disk could not be attached to the prosecutor’s report; furthermore, it did not need to be attached as it did not constitute evidence. The court concluded that the absence of the hard-disk did not automatically disqualify the transcripts from being used as evidence.
Furthermore, the court noted that, for obvious reasons related to respect for the private life of those involved, it had not listened to all the conversations recorded by the RIS, but only to those relevant to the charges brought before it. However, the parts presented to it and to the defendants by the prosecutor represented full conversations. The dialogues were coherent; the sentences were not truncated and no words were missing or had been inserted into the dialogues. It observed that neither the experts nor the parties had claimed that the content of the conversations heard in court had been falsified.
30.  The court was therefore satisfied that the prosecutor’s report on the telephone tapping and its transcripts qualified as lawful evidence for admission to the case file.
31.  All parties appealed against the judgment. In particular, the applicant complained that the Supreme Court had failed to allow the parties to discuss the new classification of the crimes; that the indictment did not comply with the legal requirements as it had not been confirmed by the Prosecutor General, which rendered it null and void; that the investigation had started before the necessary approvals had been sought; that the telephone tapping had been illegal and that the court had refused to send a constitutional complaint raised by the applicant about that evidence to the Constitutional Court; that the judgment had not been signed by the dissenting judge; and that the operative part of the decision did not correspond to the one delivered in public. He lastly complained about the court’s interpretation of the evidence in the file, in particular that the audio tapes had been taken into account despite the expert opinion, and considered that the sentence was too harsh.
32.  The case was heard by a nine-judge bench of the Supreme Court who rendered the final decision on 8 October 2003. The Supreme Court gave a detailed answer to all arguments raised by the defence concerning both the procedural and the substantive aspects of the case before the prosecutor and the first-instance court.
33.  Answering to an appeal argument raised by R.F., the Supreme Court ruled that the prosecutor had been right not to withdraw from the case after having called the defendants “offenders”, as the incriminated remarks had been uttered in the course of debates, where prosecutor and defendants were in positions of equality and had been provoked by defence counsel’s offensive statements concerning a witness.
34.  The Supreme Court noted that the telephone tapping had not observed the stricter requirements relating to magistrates. It was nevertheless satisfied that such requirements were not relevant in the case because the magistrates had not been targeted by the initial measure of telephone tapping; on this point it reiterated that the information concerning the magistrates’ alleged involvement had been obtained incidentally by the prosecutor. It observed that for the procedural acts concerning the magistrates the prosecutor had obtained all the necessary authorisations. The court also reiterated that as the tapes had disclosed information on the commission of crimes, they could not have been ignored by the authorities. Furthermore, the tapes had been made with the prosecutor’s prior approval, as the law had required at the time, and had not contravened public order. The Supreme Court attached great importance to the fact that the defendants had not denied having had the recorded conversations. It also noted that the information obtained through the telephone tapping had been confirmed by the evidence in the file. It therefore concluded that the tapes could be used as evidence.
The Supreme Court also decided that the evidence had to be interpreted in its entirety and in context, and reiterated that the law did not give precedence to any type of evidence to the detriment of others.
35.  It therefore concluded that the evidence in the file was sufficient and that the first-instance court had correctly interpreted the facts based on the elements at its disposal.
36.  The Supreme Court noted that the first-instance court had changed the legal classification of the crimes committed by L.P. from a continuous crime of giving bribe to several individual crimes of giving bribes and of the crimes committed by the applicant from a continuous crime of trading in influence and aiding and abetting L.P. to give bribes to several individual crimes of trading in influence and aiding and abetting L.P. to give bribes. It accepted that the first-instance court had erred in not allowing the parties to discuss the new legal classification of the crimes. However, it noted that such a failure did not trigger the nullity of the judgment and that in fact there had not been any risk of the defendants being disadvantaged by the new classification as the consequences in law for both situations were identical.
It noted nevertheless that the conviction for one of the crimes committed by the applicant had been pardoned. However, the final sentence remained the same.
37.  On 13 October 2003 the applicant started serving his sentence.
38.  On 15 December 2004, while the applicant was still in prison, the President of Romania granted individual pardon to several people, including the applicant, by means of Presidential Decree no. 1164 issued under Article 94 (d) of the Constitution and published the next day in the Official Monitor.
39.  On 16 December 2004 the applicant was released from prison.
40.  The President’s decision was widely criticised in the press, as one of the persons who benefitted from the pardon was M.C. who had been convicted of crimes against national security and was serving a sixteen-year and six-month sentence for his role in the miners’ riots in Bucharest in 1991.
41.  As a consequence of the protests, on 17 December 2004 the president revoked the pardon, by means of Decree no. 1173, and the applicant was incarcerated again on 18 December 2004.
42.  On 20 December 2004 the applicant objected to his renewed detention.
43.  In a decision of 20 April 2005, after several remittals of the case, the Bucharest County Court found that the applicant’s detention was illegal, on the grounds that the individual pardon had been unconditional and that once Decree no. 1164/2004 had been enforced, it was no longer revocable. The court took account of the requirements of Articles 5 and 13 of the Convention.
On 5 May 2005 the Bucharest Court of Appeal upheld the reasoning of the County Court and ordered, in addition, that the applicant be released promptly. The decision became final on 6 October 2005, before the High Court of Cassation and Justice.
44.  On 6 May 2005 the applicant was released from prison.
45.  He then lodged a civil claim against the State for illegal detention for the period from 18 December 2004 to 6 May 2005. He sought 1,400,000 euros (EUR) in damages.
46.  On 2 June 2006 the Bucharest County Court noted that the applicant’s detention had been declared illegal and granted him EUR 100,000 in respect of non-pecuniary damage. All parties appealed and in a final decision of 20 September 2007 the High Court of Cassation and Justice set the amount of compensation in respect of non-pecuniary damage at EUR 10,000 and awarded it to the applicant.